수출자로부터 매입은행이 선하증권을 취득하는 경우의 법률관계 - 그 이론 구성에 대한 시도 -

Abstract

In this study, It is examined to the following points. Firstly, Whether it isreal rights guaranteed by security or ownership transfer through entrust as asecurity right by way of transfer that negotiating bank and opening banktake right. Secondly, How it is theorized that the negotiating bank aquiresBill of Lading when opening bank of Letter of Credit is stated as consignee. As result of previous examination, it reaches to the following conclusions. Firstly, When Bill of Lading is endorsed and transferred to the negotiatingbank, the right that it acquires about the carrying goods is security bymeans of transfer and its regal characteristic is ownership transfer throughentrust. Secondly, The seller as ownership transfers bill of lading for collection ofthe price of sale to the negotiating bank when bill discount is made byhim. This is explained as follows. A seller as ownership has establishedsecurity by means of transfer for the negotiating bank. Thirdly, To acquire security by means of transfer, negotiating bankacquires ownership transfer through entrust by mere taking(receiving) bill oflading from seller as ownership. In this case, negotiating bank acquiressecurity right by means of transfer about carring goods through obtainingBill of Lading from seller as ownership. Fourthly, Bill of Lading represent security right by means of transfer asownership and also securities as claim to request to deliver cargo. Like this, with two aspects in Bill of Lading, A security right by means oftransfer as real right has different means of transfer as compared withendorsement as means of transfer of Bill of Lading as bond. Namely, Themeans of transfer and acquisition of real right is delivery and registration. itneeds to merely hand over Bill of Lading to a chattel mortgagee in order toestablish security by means of transfer. Fifthly, Negotiating bank acquires ownership over cargo and right ofconsignee in contract of carriage. As a result, It acquires claim for deliveryof cargo or claim for damage from default(breach of contract) and tort. The sixth, It is security by means of transfer that negotiating bank andopening bank acquire through Bill of Lading. It's legal characteristics isownership transfer through entrust. This opinion is valid. The reason is asfollows. In Letter of Credit transactions, an exporter tender as security tonegotiating bank Bill of Lading over cargo delivered to carrier whereas atransfer movables security allows obligor to use goods in his possesion incivil law. Accordingly, it is not irrational to transfer ownership of cargo tosecurity right holder. because a seller already has no possession.